1

Constitutional Law-1

Unit-I

Qs. Introduction to Indian Constitution and its salient features

Ans. Introduction

The Constitution of India was framed by a Constituent Assembly set up under the Cabinet
Mission Plan of 1946. The Assembly consisted of 389 members representing provinces (292),
states (93), the Chief Commissioner Provinces (3) and Baluchistan (1).

The Assembly held its first meeting on December 9, 1946, and elected Dr. Sachhidanand Sinha,
the oldest member of the Assembly as the Provisional President. On December 11, 1946, the
Assembly elected Dr Rajendra Prasad as its permanent Chairman.

The strength of the Assembly was reduced to 299 (229 representing the provinces and 70
representing the states) following withdrawal of the Muslim League members after the partition
of the country.

The Constituent Assembly set up 13 committees for framing the constitution. On the basis of the
reports of these committees, a draft of the Constitution was prepared by a seven-member
Drafting Committee under the Chairmanship of Dr B R Ambedkar.

The drafting Constitution was published in January, 1948 and people were given eight months.
After the draft was discussed by the people, the press, the provincial assemblies and the
Constituent Assembly in the light of the suggestions received, the same was finally adopted on
November, 26, 1949, and was signed by the President of the Assembly. Thus, it took the
Constituent Assembly 2 years, 11 months and 18 days to complete the task.

The Constitution of India was not an original document. The framers of the Constitution freely
borrowed the good features of other constitutions. However, while adopting those features, they
made necessary modification for its suitability to the Indian conditions and avoided their defects.
The Constitutions which exercised profound influence on the Indian Constitution were that of
UK, USA, Ireland, Canada etc.

The parliamentary system of government, rule of law, law-making procedure and single
citizenship were borrowed from the British Constitution. Independence of Judiciary, Judicial
Review, Fundamental Rights and guidelines for the removal of judges of the Supreme Court and
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High Courts were adopted from the US Constitution. The federal system with a strong central
authority was adopted from Canada.

Directive Principles of State Policy were borrowed from the Constitution of the Republic of
Ireland. The idea of Concurrent List was borrowed from the Australian Constitution. The
provisions relating to emergency were influenced by the Weimer Constitution.

Above all, the Government of India Act, 1935, exercised great influence of the Indian
Constitution. The federal scheme, office of Governor, powers of federal judiciary, etc., were
drawn from this Act. In short, the Indian Constitution incorporated the best features of several
existing constitutions.

Implementing:
Though the major part of the Constitution came into force on January 26, 1950, the provisions
relating to citizenship, elections, provisional parliament and temporary and transitional
provisions came into force with immediate effect, viz., from November 26, 1949.

Salient features

Constitution of India is a sacred document. It includes the characteristics of main constitutions of

world. This constitution is result of continuous attempts, study, discussion, thinking and
hardwork of the drafting committee during the period of 2 years 11 months 18 days. It was
enforced on 26th January, 1950 throughout the India.

The major characteristics of the constitution of India are:

Biggest constitution- generally, the form of constitution is small. Only main points are
mentioned in it and rest is left for the interpretation. But, the constitution of India is an exception.
The form of the constitution of India is neither small nor very big. It contains all the necessary
points in it.

The original form of constitution included 22 chapters 395 articles and 9 schedules. Later, these
has been increased along with the amendments.

Establishment of Soverign Democratic Republic- the main feature of oue constitution is the
establishment of Severign Democratic republic. It is called soverign because its soverignity is
vested among the people of India instead of another country. It is now completely free from
outside control. The internal and external policies are determined and controlled by India itself.
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Democracy has been established in India. The governance is secured in the hands of its people. It
fulfills the criteria of the Democracy, “Government s for the people, by the people and of the
people.” Its main object is public welfare.

Socialism and Secularism- our constitution nourishes Socialism and Secularism. It fulfills the
dreams of Mahatma Gandhi of the structure of Socialist society. Its preamble mention about
‘Social, Economic and Political Justice.’ Thus, all discriminations are rewared to establish
equality. Socialist structure could be seen from the fact that ‘Right to Property’ is removed from
the chapter of fundamental rights and added as ‘general constitutional Rights.’

It is noteworthy that expressions ‘Socialism’ and ‘Secularism’ are not mentioned in the original
format of the constitution. It has been added by the 42nd amendment.

Origin of Parliamentary Governance- India is a federation of states. Constitution is federal.

Federal constitution can be of two types- Presidential and Parliamentary.

Presidential form has the president as the ultimate power like in America. Whereas in
Parliamentary form, the actual power is in the hands of the people. It is government of people,
for the people and by the people. People representative conduct the governance in the form of
Cabinet.

India has the parliamentary form of Government. Actual power is in the hands of representatives
elected by the people. President is the head of the country, but it is only for namesake. He has to
do all work on the advice of the cabinet.

Fundamental Rights- an important characteristic and achievement of the constitution of India is

inclusion of fundamental rights in it. These fundamental rights are like a gift and boom for the
Indians who had suffered by foreign rules for years. The main object of these fundamental rights
is to provide an opportunity to the citizens of India for their complete development. Part-III of
Constitution provides following fundamental rights-

a) Right to equality
b) Right to freedom
c) Protection of life and personal liberty
d) Safeguard against Arbitrary arrest and detention
e) Right against exploitation
f) Right of freedom of religion
g) Cultural and educational rights
h) Right to constitutional remedies.

It is noteworthy that right to property was earlier a fundamental right, but later it has remained on
a constitutional right by an amendment.
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Fundamental Duties- the original format of the constitution was not containing ‘Fundamental
Duties’. Fundamental rights were added but fundamental duties were left. Later, it was found to
have fundamental duties to be introduced. As a result, new part- IV-A which consist only one
article 51-A was added to the constitution by the 42nd amendment-

a) To abide by constitution and respect its ideal and institutions, the National flag and
National Anthem.
b) To cherish and follow the noble ideals which inspired our national struggle for freedom.
c) To uphold and protect the sovereignity, unity and integrity of India.
d) To defend the country and render national service when called upon to do so.
e) To promote harmony and spirit of common brotherhood amongst all the people of India
transcending religious, linguist, and regional or sectional diversities; to practices
derogatory to the dignity of women.
f) To value and preserve the right heritage of our composite culture.
g) To protect and improve the natural environment including forests, lakes, rivers and
wildlife and to have compassion for living creature.
h) To safeguard public property and to adjure violence.
i) To develop the scientific temper, humanism and the spirit of inquiry and reform.
j) To strive towards excellence in all spheres of individual and collective activity so that
the nation constantly rises to higher levels of endeavour and achievements.

Directive principles of State- the Constitutional drafters had perceived such structure of
constitution which is for the welfare of humanity. The Constitutional drafters wanted that state
shall determine their own policies in such manner that living standards of every person are
raised, children’s education, no one is devoid of justice owing to poverty, equal pay for equal
work, economic security during oldage and sickness, decentralization of power etc. these welfare
provisions are not made compulsory and left on the availability of resources with state. It is
reason that they are called Directive Principles of State policy and not Fundamental rights.

Chapter IV of the constitution mention about these directive principles. Although, state is not
bound to implement directive principles, but it becomes the duty of a welfare state to implement
them.

Now there has been decision of the judiciary which provides directive principles of the position
of fundamental rights.

Co-ordination of Rigidity and Flexibility- if it is said that the constitution is neither strictly nor
stridly flexible, then it shall not be an exaggeagate statement. The constitution contains such a
procedure of amendment which is neither flexible as England nor rigid as America. It provides
amendment in accordance with country, time and circumstances. It is the proof that there has
been only 85 amendments, till 2001.
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Adult suffrage- as we have seen above, India has adopted Parliamentary system of governance.
In Parliamentary system, power is vested in the hands of representatives of people. People elects
the representative. This power has been entrusted by the Constitution to adults, that is, who have
completed the age of 18 years.

Article 326 of the Constitution provides for adult suffrage. It is important that there has been
no discrimination on the basis of religion, caste, tribe, etc. in the suffrage. It is a specific
characteristics of our constitution.

Independence of Judiciary- it is an important pillar of democracy. Judiciary is the ‘Security

guard’ of the fundamental rights of people. The responsibility of protection of constitution is also
on judiciary. It is good that independence of judiciary has been given ultimate position. The
independence of judiciary has been conclude as basic structure of the constitution, with which
there can be no interference.

Single citizenship- another important feature is the provision of single citizenship. Every citizen
is called Citizen of India. They cannot double citizenship alike America.

Decentralization of Power- India believes in decentralization of powers. The power is vested

among the people, not centralized in one person. ‘Panchayati Raj System’ is a good exam of 73 rd
Amendment Act, 1992 had further strenghthened it.

Qs. Definition of the State under Article 12

Ans. Part III of our constitution consists of a long list of fundamental rights, it starts right from
article 12 to article 35. This chapter has been very well described as the Magna carta of India, for
magna carta was not merely a document signed by King John but a symbol of assertion of
individual rights. It reflects the awakening of the people in face of oppressive systems like
monarchy and tells us that individuals when fortified with rights and freedoms can bring about a
great change.

The purpose behind having our fundamental rights, rests in the need for having a just society i.e
a nation ruled by law and not by a tyrant. Rule of one man only leads to eventual resentment
amongst the citizenry as maker, executor and interpreter of law is the same man. Moreover, in
case of a infringement of human rights of an individual by the abuse of state power, he will have
no option but to suffer because there’s just no hope for relief in a tyranny. This is the rationale
which led to Montesquieu developing the theory of separation of powers and the same is imbibed
in our constitution by virtue of Article 50. So, lets delve deeper into the shield which protects us
from abuse of powers by the state itself.
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The Concept of State and Article 12 of the Constitution of India

The law dictionary defines “state” as :-

A body politic, or society of men united together for the purpose of promoting their mutual
safety and advantage, by the joint efforts of their combined strength. Individuals need
constitutional protection from the acts of the state itself. Fundamental rights protection is
available against the state only as ordinary laws are sufficient enough to protect infringement of
rights by individuals. With great powers comes a greater risk of abuse and in order to safeguard
rights and freedom of individuals so that men in power do not trample upon them. However, in
order to delve deeper into the concept it is firstly imperative to explore the definition of “state”.

Article 12 defines state in the following manner:

In this part unless the context otherwise requires, “the State” includes
1. The Government and Parliament of India

2. The Government and Legislature of each of States

3. Local Authorities or

4. Other Authorities Within the territory of India or under the control of Government of India.

The Government and Parliament of India

The term points to Union executive and legislature. This phrase can be understood by simple
observation, whenever Parliament passes a bill and it gets the assent and is brought into force as
an “act” it is a function of the central legislature. Whenever any “act” whether as a whole or in
part infringes upon fundamental rights of an Individual, it is challenged before the Judiciary and
then the same is left to Judicial scrutiny. As we have seen in the celebrated case of Shreya
Singhal v. Union of IndiaAIR 2015 SC 1523 , Section 66A was challenged before the Hon’ble
Apex Court as being in violation of Article 19 and on the same basis was struck down and
declared ultra vires. Now, Information Technology Act, 2000 is a Central Law passed by Union
legislature and therefore being a “state” it could not be allowed to violate fundamental rights.

Government and Legislature of the States

This phrase indicates that acts of State legislature or Executive will also not be beyond reproach
and any State act, order, rule etc. which leads to infringement of rights of an individual shall be
safeguarded.

Local authorities
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Authorities like Municipality, District Boards etc. all come under the scope of local authorities
and remedy against them can be sought by an individual. The bye-laws that a Municipal
committee makes are all under the definition of Law under Article 13 and can be challenged on
basis of violation of a fundamental right. The reference to local authorities has been given in the
General Clauses act, 1897 and it would be pertinent to analyse the same briefly.

A proper and careful scrutiny of Section 3(31) suggests that an authority in order to be a local
authority, must be of like nature and character as a municipal committee, District Board or Body
of Port commissioners, possessing therefore, many, if not all, of the distinctive attributes and
characteristics of those bodies, but possessing one essential feature namely, that it is legally
entitled to or entrusted by the government with the control and management of a local fund.

Other authorities

Now, coming to the most disputed and discussed phrase of all article 12 i.e “other authorities”. It
is pertinent that the evolutionary process of this concept is discussed in order to understand it
better.

R.D Shetty v. Airport Authority of India which gave us the 5 Point test as propounded by
Justice P.N Bhagwati. This is a test to determine whether a body is an agency or instrumentality
of the state and goes as follows –

1. Financial resources of the State is the Chief funding source i.e. the entire share capital is held
by the government.

2. Deep and pervasive control of the State

3. Functional character being Governmental in its essence, meaning thereby that its functions
have a public importance or are of a governmental character

4. A department of Government transferred to a corporation

5. Enjoys Monopoly status which is State conferred or protected by it.

Whether BCCI is a State or not?

Due to this question surfacing frequently in LLB Exams, it has to be dealt with separately. The
relevant Judgement in this regard is Zee Telefilms v. Union Of India AIR 2005 SC 2677 as
BCCI isnot created by a statute, not dominated by government either financially, functionally or
administratively. Hence,it cannot be called a State as under Article 12 of The Constitution.

Whether Judiciary would be included in the definition of State or not?

The Judiciary is not expressly mentioned in the Article 12 and a great amount of dissenting
opinions exist on the same matter. Bringing Judiciary entirely under Article 12 causes a great
deal of confusion as it comes with an attached inference that the very guardian of our
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fundamental rights is himself capable of infringing them. Perhaps with the help of relevant
judgments this can be better understood :

However, in Rupa Ashok Hurra v. Ashok Hurra AIR 2002 SC 1771 the Apex Court reaffirmed
and ruled that no judicial proceeding could be said to violate any of the Fundamental rights and
that it is a settled position of law that superior courts of justice did not fall within the ambit of
‘state’ or ‘other authorities’ under Article 12.

This leaves with us with the rationale that a Superior Judicial body when acting “Judicially”
would not fall under the definition of State but when it performs any administrative or similar
functions e.g conducting examination, it will fall under the definition of “state” and that remedy
could be sought in that context only in case of violation of fundamental rights.

Qs. Dimension of Article 13

Ans. A significant feature of the Indian Bill of Rights is that the remedy for the enforcement of
the fundamental rights is itself declared a fundamental right and is included in the very chapter
on fundamental rights. An act of the State, whether legislate or executive, if inconsistent with
a fundamental right, is declared to be null and void under Article 13. The nullity of such an act
does not rest upon judicial pronouncement, but upon the express provision contained in Article
13.

Purpose of Article 12 and Article 13

In enacting fundamental rights in Part III of our Constitution, the founding fathers showed that
they had the will, and they were ready to adopt the means to confer legally enforceable
fundamental rights. First, against whom were the fundamental rights to be enforced? Broadly
speaking, against “the State”, not as ordinary understood but as widely defined by Art. 12.

Secondly, against what activity were fundamental rights enforceable? They were enforceable
against laws and executive actions, which violated fundamental rights. In brief, all laws
contravening and/or violating fundamental rights were declared to be pro tanto void as defined
in Art. 13. Article 13 of the Indian Constitution States that:

“Laws inconsistent with or in derogation of the fundamental rights

(1) All laws in force in the territory of India immediately before the commencement of this
Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent
of such inconsistency, be void

(2) The State shall not make any law which takes away or abridges the rights conferred by this
Part and any law made in contravention of this clause shall, to the extent of the contravention, be
void
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(3) In this article, unless the context otherwise requires law includes any Ordinance, order, bye-
law, rule, regulation, notification, custom or usages having in the territory of India the force of
law; laws in force includes laws passed or made by Legislature or other competent authority in
the territory of India before the commencement of this Constitution and not previously repealed,
notwithstanding that any such law or any part thereof may not be then in operation either at all or
in particular areas

(4) Nothing in this article shall apply to any amendment of this Constitution made under Article
368 Right of Equality.”

Article 13 is the key provision as it gives the teeth to the fundamental rights and makes them
justiciable. The effect of Article 13 is that Fundamental Rights cannot be infringed by the
government either by enacting a law or through administrative action.

Existing laws inconsistent with the Constitution

This clause provides that all “laws in force” at the commencement of the Constitution which
clash with the exercise of the Fundamental Rights, conferred by Part II of the Constitution shall,
to that extent, be void. A pre constitution law, after the commencement of the Constitution, must
conform to the provisions of Part III of the Constitution. However, infringement of a
fundamental right cannot be founded on a remote or speculative ground.

But this does not make the existing laws which are inconsistent with the fundamental rights
void ab initio.The entire Part III of the Constitution including Art. 13(1) is prospective. Hence,
existing laws which are inconsistent with any provision of Part III are rendered void only with
effect from the commencement of the Constitution, which for the first time created the
Fundamental Rights. The inconsistency referred to in Art. 13(1), therefore, does not affect
transactions past and closed before the commencement of the Constitution or the enforcement of
rights and liabilities that had accrued under the ‘inconsistent laws’ before the commencement of
the Constitution.

On the other hand, it does not mean that an unconstitutional procedure laid down be a pre-
Constitution Act is to be followed in respect of ‘pending’ proceedings or in respect of new
proceedings instituted with regard to pre-Constitution rights or liabilities. Just as there is no
vested right in any course of procedure, there is no vested liability in matter of procedure in the
absence of any special provision to the contrary.

But if the proceedings had been completed or become final before the commencement of the
Constitution, nothing in the Fundamental Rights Chapter of the Constitution can operate
retrospectively so as to affect those proceedings. For the same reason, it is not possible to
impeach the validity of that part of the proceedings which had taken place under the inconsistent
law, prior to the commencement of the Constitution.
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The effect of Art. 13(1) is not to obliterate the inconsistent law from the statute book for all times
or for all purposes or for all people.The effect is that the inconsistent law cannot, since the
commencement of the Constitution stand in the way of exercise of fundamental rights by persons
who are entitled to those rights under the commencement of the Constitution, as regards persons
who have not been given fundamental rights, e.g., aliens.

Doctrine of Eclipse

It follows, therefore, that if at any subsequent point of time, the inconsistent provision is
amended so as to remove its inconsistency with the fundamental rights, the amended provision
cannot be challenged on the ground that the provision has become dead at the commencement of
the Constitution and cannot be revived by the amendment. All acts done under the law since the
amendment will be valid notwithstanding the fact of inconsistency before the amendment. It is
known as the doctrine of eclipse.

For the same reason, if the Constitution itself is amended subsequently, so as to remove the
repugnancy, the impugned law becomes free from all blemishes from the date when the
amendment of the Constitution takes place.

Although a pre-constitutional law is saved in terms of Art. 372 of the Constitution, challenge to
its validity on the touchstone of Arts. 14, 15 and 19 of the Constitution is permissible in
law. Validity of a statute may be subject to changes occurring in societal conditions in domestic
as well as in international arena with time.

Post-Constitution laws, which are inconsistent, shall be void ab initio:

Art. 13(2) provides that any law made by any legislature or other authority after the
commencement of the Constitution, which contravenes any of the fundamental rights included in
Part III of the Constitution shall, to the extend of the contravention, be void.

As distinguished from Cl. (1), Cl. (2) makes the inconsistent laws void ab initioand even
convictions made under such unconstitutional laws shall have to be set aside. Anything done
under the unconstitutional law, whether closed, completed or inchoat, will be wholly illegal and
the relief in one shape or another has to be given to the person affected by such unconstitutional
law. Nor it is revived by any subsequent event.

This does not mean that the offending law is wiped out from the statute book altogether. It
remains in operation as regards to persons who are not entitled to the fundamental rights in
question (e.g., a non-citizen in respect of a right guaranteed by Art. 19). Nor does Cl. (2)
authorize the Courts to interfere with the passing of a bill on the ground that it would, when
enacted, be void for contravention of the Constitution. The jurisdiction of the Court arises when
the bill is enacted into law.

Doctrine of Severability
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It is not the whole Act which would be held invalid by being inconsistent with Part III of the
Constitution but only such provisions of it which are violative of the fundamental rights,
provided that the part which violates the fundamental rights is separable from that which does
not isolate them. But if the valid portion is so closely mixed up with invalid portion that it cannot
be separated without leaving an incomplete or more or less mingled remainder the court will
declare the entire Act void. This process is known as doctrine of severability or reparability.

The Supreme Court considered this doctrine in A.K. Gopalan v. State of Madras, and held that
the preventive detention minus Section 14 was valid as the omission of Section 14 from the Act
will not change the nature and object of the Act and therefore the rest of the Act will remain
valid and effective. The doctrine was applied in D.S. Nakara v. Union of India, where the Act
remained valid while the invalid portion of it was declared invalid because it was severable from
the rest of the Act. In State of Bombay v. F.N. Balsara, it was held that the provisions of the
Bombay Prohibition Act, 1949 which were declared as void did not affect the validity of the
entire Act and therefore there was no necessity for declaring the entire statute as invalid.

Definition of Law

Art. 13(3)(a) defines ‘law’ very widely by an inclusive definition. It does not expressly include a
law enacted by the legislature, for such an enactment is obviously law. The definition of law
includes:

(i) an Ordinance, because it is made in the exercise of the legislative powers of the executive;

(ii) an order, bye-law, rule, regulation and notification having the force of law because ordinarily
they fall in the category of subordinate delegated legislation and are not enacted by the
legislature;

(iii) custom or usage having the force of law because they are not enacted law at all. This
extended definition appears to have been given to ‘law’ in order to forestall a possible contention
that law can only mean law enacted by the legislature.
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Unit- II

Qs: Right to equality and protective dicrimination – Articles 14, 15 and 16

Ans: Article 14 to 18 of the Constitution provides every person with the fundamental rights of
equality. Article 14 provides that “the state shall not deny to any person equality before the law
or equal protection of the laws within the territory of Indian.” Article 15 prohibits discrimination
on the basis of religion, race, caste, sex or birth place. Whereas article 16 provides equality of
opportunity. Article 17 prohibits untouchability and Article 18 provides for abolition of titles.

Equality before Laws-

The words “equality before Laws” have been adopted from British Constitution. Famous Jurist
dicey has called it as ‘Rule of Law’. the ‘Rule of Law’ means- no one shall be above law, i.e. all
persons are equal before law irrespective ofclass. No one claim to be above law.

‘Equality before Law’ applies to all persons, whether it is corporation or any other legal person
as held in ‘Chiranjeet Lal chaudhary Vs Union Of India (A.I.R. 1951 S.C.41).

‘Raghubir Singh Vs State of Haryana’ (A.I.R. 1980 S.C. 1086)- it was said the principle of
Rule of Law also applied to accused. It was the duty of the state to protect the accused from
unhumanly behaviour of Police.

In all, it can said in words of dicey- in rule of law, i.e. equality before law, every one from
Primer Minister to soldier is responsible fr their works. There is no discrimination between
small, big, rich-poor, etc.

Equal Protection of Laws-

The expression ‘Equal protection of Laws’ means- Person under equal circumstances shall be
kept under equal law and implement them equally. In other words, it can be said that no
discrimination legal aspect between person and same circumstances and equally implementing
the laws, is equal protections of laws.

‘Equal protection of Law’ was provided by the 14 th Amendment of American Constitution. The
American Constitution provides the- no state shall deny to any person within its jurisdiction the
equal protection of laws,.

The expression ‘Equality before law’ and ‘Equal protection of laws’ and supplementary to each
other. Both cannot be separated. If first expression is negative then other is positive.

Exceptions

Above analysis shows that Rule of law includes that all person shall be equal before law and all
person shall be equally protected by laws, but this is not an absolute rule. This rule applies to
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those persons who are under similar position and circumstances, not on all. There are several
types of persons in a society, like- Male, female, rich- poor, forward-backward, etc. there
requirements, expectations and problems are different. There living standard may be different.
Hence, a same law cannot be applied on all as a universal law. If same law is applied, then it
shall be inequality rather than equality.

This means that state can make classification. But such classification must be reasonable or
should not be arbitrary or artificial as held in ‘R.K.Garg Vs Union of India (A.I.R. 1981 S.C.
2138).

It also shows that Article 14 prohibits class legislation, but permits classification.

Reasonable classification- there are two criteria for reasonable classification-

1. The classification must be founded on an intelligible differentia which distinguishes

persons or things that are grouped together from other left out of the group; ad
2. The differentia must have a rational relation to the object sought to be achieved by the
Act. (Kathi Rering Vs State of Maharashtra, A.I.R. 1952 S.C. 123 and
Ramkrishna dalmiya Vs Justice tandolkar, A.I.R. 1958 S.C. 538).

In simple words, it can be said that the classification should be such that it appears to be
reasonable to an ordinary prudent man.

Grounds of Classification:

Under Article 14, classification may be on following grounds-

a) On basis of geographical position,

b) In favour of state,
c) In respect of taxing statues,
d) In respect of special courts and procedures, and
e) In respect of discretionary powers of Administrative officers.

Classification can be made on the basis of geographical position of the country. ‘State of Punjab
Vs Ajazaid Singh (A.I.R.1953 S.C. 10).

Similar situation is of taxing laws. State can elect and classify persons and things in making
taxing laws, so that burden of tax is not same on rich and poor people.

Thus, article 14 provides guarantee for equality and equal protection of laws. It prohibits class
legislation, but permits classification.

Article 15
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Article 15 of the Constitution provides that no citizen shall be subjected to discrimination in

matters of rights, privileges and immunities pertaining to him. This Article lays down:

(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste,
sex, place of birth or any of them,

(2) No citizen shall on grounds only of religion, race, caste, sex, place of birth or any of them, be
subjected to any disability, liability, restriction or condition with regard to:

(a) Access to shops, public restaurants, hotels and places of public entertainment, or

(b) The use of wells, tanks, bathing Ghats, roads and places of public resort maintained wholly or
partly out of State funds or dedicated to the use of the general public.

(3) Nothing in this Article shall prevent the State from making any special provision for women
and children.

(4) Nothing in this Article or in clause (2) of Article 29 shall prevent the State from making any
special provision for the advancement of any socially and educationally backward classes of
citizens or for the Scheduled Castes and Scheduled Tribes.

The guarantee under Article 15 is available to citizens only and not to every person whether
citizen or non-citizen as applicable under Article 14 of the Constitution.

In Air India v. Nargesh Miija, AIR 1981 S.C. 1829, the Supreme Court struck down
Regulations 46 and 47 of the Air India and Indian Airlines. Regulation 46 provided that an air-
hostess shall retire from the service of the corporation upon attaining the age of 35 years or on
marriage, if it takes place within 4 years or on first pregnancy whichever is earlier.

Under Regulation 47, Managing Director had discretion to extend the age of retirement by one
year at the time up to the age of 45 years, if the air-hostess is found medically fit. The court held
that termination of service on the basis of pregnancy is unfair and clearly violates Article 14. The
power of managing director for the extension of age of retirement is also unconstitutional.

In State of Madhya Pradesh v. Nivedita Jain, AIR 1981 S.C. 2045, the Supreme Court upheld
the validity of an executive order of the Government of Madhya Pradesh completely relaxing the
condition of qualifying marks for the candidates of Scheduled Castes and Scheduled Tribes in
Pre-Medical Tests.

The court observed that in the absence of any law to the contrary, it is open to the government to
impose such conditions which would make the reservation effective for the advancement of
candidates of such classes.
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Article 16

Qs: Article 19 (1) (a) and 19 (2)?

Ans: According to Article 19 (1) of the Constitution, the citizen of India are provided several
freedom. The first of such freedom is right to freedom of speech and expression.

Article 19(1)(a) says that, “All citizens shall have freedom of speech and expression.

Actually, this is the most important right amongst all rights. It is the right which helps in
conversation. It is a medium of expression of thoughts.

Speech and expression means- expression your views by way of words, articles, signs,
representation, etc.

There can also be other way of expression, and all such medium shall be deemed to be
expression.

‘Lawell Vs Giffin’ [(1938) 303 U.S. 444]- numbers, signs, symbols, etc. were held to medium of
expression.

‘Tata press Ltd. Vs Mahanagar Telephone Nigam Ltd.’ (A.I.R. 1995 S.C. 2438)- commercial
speech and expression shall be deemed to be part of speech and expression under Article 19(1)
(a).

Freedom of Press:

Freedom of speech and expression includes freedom of press- Any person may express his views
by articles, cartoons, advertisements, etc. in a newspaper- Sriniwas Vs State of Madras (A.I.R
1951 Madras 79)- Madras High Court held that the freedom of speech and expression is not
limited to the publicity of views. It includes the publicity of views of others also which is
possible by freedom of press only.
 16

Whether freedom of press can be restricted? This question has been in discussion from the
beginning- ‘Virendra Vs State of Punjab (A.I.R. 1957 S.C. 896)- the Supreme Court has said
that, “Preventing any newspaper from publishing any article of current importance is
encroachment of the freedom of speech and expression.

Ramesh Thappar Vs State of Madras (A.I.R. 1950 S.C. 124)- it was held that, “A newspaper
published in one state cannot be prevented to be delivered in another state, because freedom of
press includes its publicity also.”

Similarly, ‘Maneka Gandhi Vs union of India (A.I.R. 1973 S.C. 597)- it was said that if the
passport of any journalist is withdrawn to avoid him from expressing views in foreign, then it
violates the Article 19(1)(a).

Express Newspaper Pvt. Ltd. Vs Union of India (A.I.R. 1958 S.C. 578)- the following
activities diminishing the freedom of Press were held unconstitutional-

a) Pre-censorship of newspaper,
b) Prohibition on circulation of Newspaper,
c) Prohibition in start of newspaper
d) Government aid to be compulsory for the continuity of newspaper, etc

Above analysis shows the importance of freedom of press.

(1)Right to Assemble- Article 19(1) (b) provide that all citizens of India have the right to
assemble peaceably and without arms. The right of assemble includes the right to hold meetings
and to take out processions. Actually, this right is also similar to freedom of speech and
expression.

But it is noteworthy that Right to assemble is also not absolute. Lawful Assembly requires two
things-

i. It must be peacefull; and

ii. Without arms.

This right can be restricted. Restriction may be on following grounds-

(a) Soverignity and integrity of India; and

(b) Maintaining Public Order.

(2)Right to form Association and Union- Article 19(1) © of the Constitution provide
fundamental right to each citizen of India to form association or Unions. According to it, every
citizen of India is free to form Association or union of his liking.
 17

Suryapal Singh Vs State of U.P. (A.I.R. 1951 Allahabad 674)- Allahabad High Court said
while accepting this right that- “every citizen of India is free to form any association or Union at
his own will, continue or stop it, being or not being part of it.

(3)Right to Move- Article 19(1) (d) provide the fundamental right to all citizens of India to
move freely throughout the territory of India.

Gurubachan Singh Vs State of Mumbai (A.I.R. 1952 S.C. 221)- Supreme Court accepted the
right by saying that- Article 19(1) (d) provides every citizen with the freedom move freely
throughout India. It is not only to move from one state to another, but also from one place in a
state to another in that state.

The freedom may be restricted on following grounds-

a) In the interest of general public; and

b) For the protection of the interest of schedule tribes.

(4) Freedom of Residence- Article 19(1) (e) of Constitution guarantees every citizen of India for
the right to reside and settle in nay part of the territory of India. This right provides anyone to
live anywhere in India.

(5) Right to Profession, any trade or business- Article 19(1) (g) guarantees all citizens with the
right to practice any profession, or to carry on any occupation, trade or business. Principles of
natural justice also require so.

In the case of M.R. kondell Vs Bar council of India (A.I.R. 2009 Himachal Pradesh 85) the
rule of Himachal Pradesh Bar Council was declared as unconstitutional by Himachal Pradesh
High Court, which was restricted a person of age of more than 45 years to nominate as an
advocate.

Prohibition on Freedom of Speech and Expression:

It is noteworthy that freedom of speech and expression is not absolute. Freedom can be restricted
under certain circumstances. Article 19(2) provides prohibition on freedom of speech and
expression under following circumstances-

(1) Security of State;

(2) Friendly relations with foreign states;
(3) Decency and morality;
(4) Public order;
(5) Contempt of Court;
(6) Defamation;
(7) Incitement of an offence;
(8) Soverignity and integrity of India.
 18

(1) Security of State- freedom of speech and expression may be restricted for the security of
state.
(2) Friendly relation with foreign state- freedom of speech and expression cannot be made
available where it causes damage to the friendly relation with foreign states. Rumours to
cause hatred with foreign countries are prohibited.
(3) Morality and Good Conduct- freedom of speech and expression is prohibited for morality
and good conduct. No one can be permitted to publish such literature which is immoral and
encourages corrupt thoughts. In other words, literature creating differences may be
prohibited from being published.
(4) Public order- freedom of speech and expression may be prohibited on the basis of public
order. It is the duty of state to maintain public order.
(5) Contempt of Court- on the basis of freedom of speech and expression, anyone cannot be
allowed for contempt of court. No one can cause damage to the dignity of court by taking
benefit of freedom of speech and expression. If he does so he may punished.
(6) Defamation- No one can be given freedom on the basis of freedom of speech and
expression, to cause damage to the prestige of any person.
(7) Incitement of Offence- no one can use the freedom of speech and expression in such a way
that it encourages violence and offence in the society.
(8) Soverignity and Integrity of India- finally, freedom of speech and expression may be
prohibited to maintain soverignity and integrity of India. This restriction has been added by
16th Constitutional Amendment, 1963.

Thus, freedom of speech and expression under Article 19(1) (a) with above restriction is an
important right.
 19

Unit- III

Qs: protection provided under Article 20?

Ans: article 20 of the Constitution provides three types of protection in respect of conviction for
offences-

1) Protection from expost facto laws;

2) Protection from double jeopardy and
3) Prohibition against self Incrimination.
(1) Protection from Expost facto laws- Article 20 of this Constitution says that no person shall
be convicted of any offence except for violation of a law in force at the time of the
commission of the fact charged as an offence, nor be subjected to a penalty greater than that
which might have been inflicted under the law in force at the time of the commission of the
offence.

This means that anyone can be convicted only for that act which is an offence under any law at
the time of the commission of that act. If that act is not offence under any law in force at that
time, then he cannot be punished by making a law afterwards. This means that no criminal law
can be implemented retrospectively.

Similarly, any person can be punished with that extent of punishment for an offence which is
prescribed at the time of commission of that offence. No law can be made later to increase the
extent of punishment for prior offence.

‘Kedarnath Bajoria Vs state of West Bengal’ (A.I.R 1953 S.C. 404) is an important matter.
Accused committed an offence in 1947 A.D. At that time, imprisonment or fine or both could be
inflicted for that offence. In 1949 A.D. punishment was increased by an amendment. Supreme
Court held that the amended punishment cannot be inflicted upon offence committed in 1947.

(2) Protection from double jeopardy- article 20(2) provides that- “No one can be punished and
convicted more than once for the same offence. ‘it is based on English formula- nemoo debet
Vs vexari’. It means no one should be put twice in peril for the same offence. American
Constitution also contains similar provision. According to American Constitution- “no one
can be put in danger twice for the same offence’. It is also called double jeopardy. It simply
means
that if any accused is convicted or acquitle after a trial, then he cannot be again forced to
undergo trial for the offence on a subsequent happening.

Kalavati Vs State of H.P. (A.I.R. 953 .C. 131)- three points were held to b e required for the
application of article 20(2)-

a) Person must be accused of an offence;

 20

b) Trial to be conducted before court or judicial tribunal and should be of judicial nature;
and
c) Trial or proceeding for such offence for which punishment is provided.
(3) Prohibition against self- incrimination- Article 20(3) provides that- “Accused person
cannot be compelled to become witness against himself for an offence.” It is well established
principle of jurisprudence that a person shall be considered to be innocent till he is proved
guilty. This means that burden of proof is on prosecution. In this context, accused is not
required to do anything. On this basis the rule was framed that a person cannot be compelled
to give evidence against himself.

The following points are required-

i. Person is charged of a offence;

ii. He has been compelled to become witness against himself; and
iii. He has been forced to give evidence against himself.

Nandini Satpathi Vs P.L.Dani (A.I.R. 1978 S.C.1025)- Supreme Court held that if the question
asked is consisting of elements of self-incrimination then accused take the protection of Article
20.

Qs: Article 21

Ans: Article 21 of the Constitution is very important. The scope of this article has kept
increasing with the time, place and circumstances. It provides protection of life and personal
liberty. The base of this article is – “No person shall be deprived of his life or personal liberty
except according to the procedure established by law.”

This question is that what is life and personal liberty.” Generally it is understood as right to live.
Every person has the right to live. The right to live also has a different meaning. It means not
only with living, but with respectful and humanly pride’ living.

‘Kharak Singh Vs State of U.P.’ (A.I.R. 1963 S.C. 1295)- Supreme Court while describing this
right said that- “Right to live means not merely animal existence, but living respectfully and
human dignity.”

Similarly, “Maneka Gandhi s Union of India” (A.I.R. 1978 S.C. 597)- the Supreme Court held
that- “The expression ‘personal liberty’ covers a variety of rights which go to constitute the
personal liberty of man.’

Above analysis shows that right of life and personal liberty means- right to live respectfully and
with human dignity. With the passage of time, several subject related to human dignity have
been included in this right, namely-
 21

(1) Right to medical attendance & treatment (Parmanand Katara Vs nion of India, A.I.R.
1989 S.C. 2039).
(2) Right to Education (Kumari Mohini Jain vs State of Karnatka, A.I.R. 1992 S.C. 1958).
(3) Right to Environmental Conservation (law Society of India Vs Fertilizers and Chemicals,
Travancore, A.I.R. 1994 Kerala 308).
(4) Right to speedy trial (Police Commissioner, Delhi Vs Register, Delhi High Court, A.I.R.
1997 S.C. 95).
(5) Right to Prevention of Sexual harassment of Working Women (Vishaka Vs State of
Rajasthan, A.I.R. 1997 S.C. 3011).
(6) Right to free legal aid (S.H. Hoskot Vs State of Maharashtra, A.I.R. 1978 S.C. 1548).
(7) Right to respectful funeral of unidentified bodies (Shelter right movement Vs Union of
India, A.I.R. 2002 S.C. 554).
(8) Right to rehabitation of beggars (AbhiparayaWelfare Society Vs Government of A.P.
A.I.R. 2001 A.P. 273).
(9) Right to protection from smoking (Murli S. Deora Vs Union of India, A.IR. 2002 A.C. 40).
(10) Right to protection from ragging of students (Vishwa Jagriti Mission Vs Government
of India, A.I.R. 2001 S.C. 2783 and S.Ramesh Vs Venipoya Dental College, .I.R. 2002
Karnataka 264).
(11) Right to maintenance of Women dignity in beauty contests (Chandra Raj Kumari Vs
Police commissioner, Hyderabad, A.I.R. 1998 A.P. 302).
(12) Right to electricity and water (Maulvi Masood Ahmed Vs State of J&K, A.I.R. 1997
J&K 75) and (Putappa Hannapa Talwar Vs Deputy Commissioner, Dharwad, A.I.R.
1998 Karnataka 10).

Right to Livelihood- it is an important question that whether right to livelihood is included in

the right to life and personal liberty under Article 21? Although Article 21 does not clearly
mention about it, but the decision of Supreme Court had led to believe that right to livelihood is a
part of Article 21.

‘Consumer Education and Research Centre Vs Union of India (A.I.R. 1995 S.C. 922)-
Supreme Court held that providing better sources of livelihood is part of article 21.

Right to fair hearing and speedy trial- in changing circumstances, our courts have included
fair hearing trial ad speedy trial in the right to life and personal liberty under Article 21.

‘State Vs Maksudan Singh (A.I.R. 1986 Patna 38)- Patna Court said that the right to life and
personal liberty has extended to the matters of speedy trial.

Right to Free Legal Aid- Now, right to free legal aid has also been considered to be part of right
to life and personal liberty under Article 21. Although, free legal aid has not been given place in
Article 21, rather it is mentioned in Article 39 A (Directive Principles of State Policy); but
judicial decision have given it the position of fundamental right.
 22

‘M.H. Haskot Vs state of Maharashtra (A.I.R. 1978 S.C. 1548)- Supreme Court clearly said
that- “It is the duty of state to provide free legal aid to poor, not a relief.”

Procedure established by law- it is noteworthy that right to life and personal liberty is not
absolute. It can be restricted or withdrawn by ‘procedure established by law, i.e. a person may be
devoid of right to life and personal liberty by procedure established by law. The expression
‘procedure established by law’ is similar to the expression ‘Due process of law’ mentioned in
American Constitution.

But, such law must be in accordance to the principles of natural justice and be reasonable no one
can be devoid of his right owing to an arbitrary law.

‘A.K. Gopalan Vs State of Madras’ (A.I.R. 1952 S.C. 27)- Supreme court while ratifying it
said that “Procedure established b y law must be reasonable, justifiable and according to
principles of natural justice.”

Qs: Article 22?

Ans: Article 22 of the Constitution provides for protection against arrest and detention.

Article 22 provides two types of protection-

1) Protection regarding arrest under the ordinary law of crime; and

2) Protection against detention under preventive detention laws.
(1) Protection regarding arrest under the ordinary law of crime- article 22 (1) and (2)
provides for protection against arrest under the ordinary law of crime. According to it-

“A person who has been arrested shall be informed ‘as soon as’ may be of ground of arrest and
shall have the right to consult and to be represented by a lawyer of his own choice.”

“Every person who has been arrested and detained in custody, shall be produced before the
nearest Magistrate within 224 hours of his arrest, excluding the time taken to reach the
Magistrate from the place of arrest and no detention beyond 24 hours except by order of the
Magistrate.”

Above analysis shows three types of protection against general arrest-

I. Right to be informed of the reason of arrest;

II. Right to consult with a lawyer of his own choice; and
III. Right to be produced before a magistrate within 24 hours of arrest.
(i) Right to be informed of the reason of arrest- the person so arrested has the first right to
be informed of the grounds of arrest. No one can be detained without being informed of
the grounds of arrest.
 23

‘State of M.P. Vs Shobharam (A.I.R. 1966 S.C. 1910)- it is said to the extent that the right of
being informed of the grounds of arrest is not dispensed with by offering to make bail to the
arrested person.

(ii) Right to consult a lawyer- the arrested person has the right to consult and be represented
by a lawyer of his own choice. If any accused or arrested person is poor and is incapable
to employ any lawyer owing to poverty, then such person has the right to have free legal
aid and appoint any lawyer at the expenses of the state.

In India, ‘Kalaben Kalabhai Desai Vs Alabhai Kkarmashi Bhai Desai’ (A.I.R. 2000 gujrat
232)- informing the person with the right to free legal aid is the responsibility over ‘Bar and
Bench.’

(iii) Right to be produced before magistrate within 24 hours- the third right of a arrested
person is that he must be produced before a magistrate within 24 hours of his arrest
except the travel time. The arrested person cannot be detained in custody for more than
24 hours without the order of the magistrate.

‘Joginder Kumar Vs state of U.P. [(1994) 4 S.C.C 260]- Supreme Court issued certain
directions to prevent the arbitrary behaviour of police at the time of arrest-

(a) The family or the friends of the arrested person shall be informed of the arrested person, and
(b) The police officer shall inform the arrested person of his rights.
(2) Protection against detention under Preventive Detention laws- the facility of arrest and
detention under preventive detention laws is an important feature of the Constitution of
India. Such arrest or detention is different from general arrest or detention. Such arrest or
detention is made mainly to prevent apprehension of offences and in the national interest.

‘A.K. Gopalan Vs State of Madras’ (A.I.R. 1950 S.C. 27) and ‘R.B. Rajbhar Vs State of
West Bengal’ (A.I.R. 1975 S.C. 623)- Supreme Court said that –“IN comparison to individual
freedom, the national interest shall supercede. National interests cannot be sacrificed for
individual freedom.”

In our country, preventive detention laws have been made from time to time, like Preventive
Detention Act, 1950; Internal Security Act 1971; National Security Act, 1980; Terrorist and
Disruptive Activities (Prevention) Act, 1987 (TADA) etc.

Article 27(7) mention certain protection to present the misuse of these laws, namely-

(i) Review by Advisory Board;

(ii) Communication of grounds of detention dentenue;
(iii) Dentenue’s right of representation;
(iv) Procedure of Advisory Board.
 24

(i) Review by Advisory Board- it is kept under the review powers of advisory board to
restrict the misuse of preventive detention. Board is constituted by the judges of the High
court. Advisory board submits its report after considering the relevancy of causes of
detention.

‘Shibbanlal Vs State of U.P.’ (A.I.R. 1954 S.C. 179)- Supreme Court held that if the advisory
board is of the opinion that there are no sufficient reasons of detention, then the government has
to withdraw the order of detention.

(ii) Right to know the reason of detention and arrest- Article 22(5) provides the right to
know the grounds of arrest and detention. According t it, it shall be the duty of authority
ordering detention that it shall communicate the grounds of detention to detenue.
(iii) Right to present representation- Article 22(5) provides that it is the duty of authority
ordering detention to inform about this right of representation.

‘State of Maharashtra VS Santosh Shankar Acharya’ (A.I.R. 2000 S.C. 2504)- Supreme
Court said that it is the duty of competent authority to inform the detenue of his right of
representation. If the competent authority does not inform, it shall be violation of Article 22(5).

Qs: right to freedom of religion 25-28

Ans: An important feature of our Constitution is its being secular state. Preamble of the
Constitution presents India as a secular state. Several times, a question arises what is meant by
secular state?

‘Perunna Chilbiranar Vs State of Tamil Nadu’ (A.I.R. 1986 Madras 83)- the word ‘secular’
has been defined as- ‘Secular state means not with irreligious or astheistic but with such state
which does not have any particular religion.’ Similarly, ‘S.R.Bommai Vs Union of India’
(A.I.R. 1994 S.C. 1918)- It was held that-“Secularism is positive concept to treat equally all
religions and religious denomination.” India has adopted this concept.

Freedom of Religion- Article 25 of the Constitution provides that; “ll persons are equally
entitled to freedom of conscience and the right freely to profess, practice and propagate
religions.”

Thus, it is clear that Article 25 provides every person with-

(i) Freedom of conscience; and

(ii) Right to freely profess, practice and propagate any religion.
 25

Every person has the freedom to follow any religion as per his conscience. He has the freedom to
worship any religion, perform rituals and religious practices, ceremonies etc. and communicate
his religion to others. State cannot impose any particular religion. In other words, it can be said
that India has no state religion.

‘B. Emanual Vs State of Kerala (A.I.R. 1986 Kerala 32 : A.I.R. 1987 S.C. 748)- The question
was the compulsion to sing ‘National Anthem’ in a school. A person of particular religion
community challenged on the ground that any student cannot be compelled to sing National
Anthem in schools. It is noteworthy that Kerala High Court dismissed the petition. But, Supreme
Court accepted the petition (appeal) by giving religion priority over National Anthem.

Thus, it is clear that India has given due importance to freedom of religion, hence it is a secular
state.

‘Church of God in India Vs K.P.Megastic Colony Welfare Association (A.I.R. 2000 S..
2773)- Noise pollution at religious places was held to be prohibited.

Not only this, polygamy, Devdasi custom, sati custom, etc. in the name of religion can be
restricted or prohibited. In all, intention is that freedom of religion can be regulated by state.

Freedom of Management of religious activities- Article 26 says that every religions

community or its section shall have the following rights-

(a) To establish and maintain institution for religious and charitable purposes;
(b) To manage its own affairs in matters of religion;
(c) To own and acquire movable and immovable property;
(d) To administer such property in accordance to law.

Every religions community has the right to manage its affairs. Methods of worship, religious
ceremonies, etc. are part of religious activities (Venkatraman Vs State of Mysore, A.I.R. 1958
S.C. 255).

Freedom of Taxes- Article 27 provides another important right regarding freedom of religion.
According to it, no person shall be compelled to pay any tax for the promotion or maintenance of
any religion.

Commissioner, H.R.E. Vs L.T. Swamiyer (A.I.R. 1954 S.C. 282)- Supreme Court held that
state cannot impose taxes for the development of any religion. State cannot also spend money
recovered as a tax, on any particular religion. It proves secularism of state.

Prohibition of Religious Instruction in State aided Institutions- Article 28 of the Constitution

provides that-

(i) No religious institution shall be imparted in any educational institution wholly

maintained out of state funds.
 26

(ii) No person attending any educational institution recognised by the state or receiving aid
out of state funds shall be required to take part in any religious instruction that may be
imparted in such institution or to attend any religious worship that may be conducted in
such institution or to any premises attached there to unless such person or if such person
is a minor his guardian has given his consent thereto.

‘D.A.V. College, Jalandhar Vs State of Punjab [(1971)2 S.C.C. 269]- it was said that, “if any
syllabus contains preaches of Guru Nanak, it does not mean to propagate any religion, rather it is
only research and educational study of the life and teaching of Guru Nanak.

Thus, every person of India has been provided the right to freedom of religion subject to some
restrictions under Article 25 to 28 of the Constitution.

Qs: Article 29 and 30.

Ans: Article 29 and 30 of that Constitution mention about educational and cultural rights. It
mainly includes the arrangements made for protection of interest of minorities. Article 29 is
related to minorities to establish and manage educational institution.

Firstly, ‘Minority, is to be understood. It has not been defined in the constitution. Generally,
minorities means such class which is based on its own language, script or culture and whose
population in state is in minority.

‘D.A.V. College Vs State of Punjab’ [(1971 (2)S.C. 269] it was said that any class is minority
or not, shall be determined considering the population of the state as a whole.

Protection of Interest of Minorities- .Article 29 providess for protection of interest of

minorities. It can be divided into two types-

i. Any section of the citizens residing in any part of India having a distinct language, script
or culture, shal have the rght to conserve the same, i.e. language, script or culture.
ii. No citizen shall be denied admission into any educational institutions maintained by the
state or receiving aid out of state fnds on ground of Religion, race, caste, language or any
of them.

Article 29 (1) provides right to conserve language, script or culture. They may be protected in
any way. Political movement may be assisted for the protection of language.

‘Jagdev Singh Vs Pratap Singh’ (A.I.R. 1965 S.C. 183)- it was said that if any one is called
opposer of arya samaj and Hindi language during elections and uses Om flag during meetings,
then it is not unconstitutional.
 27

Article 29(2) prohibits restriction on admission in educational institution maintained by states or

receiving state aid on the basis of religion, caste, race and language or any of them.

‘State of Bombay Vs Bombay Education Society’ (A.I.R. 1954 S.C. 561)- it was said the any
person cannot be prevented admission on the basis of language. If person not knowing English is
prevented from admission in an English medium school, it shall be unconstitutional.

Article 29(2) clarifies one more thing. A person has the right to admission in educational
institution as a citizen, not as a member of any group. The provision of this article apply to all
whether majority or minority.

Right to establish and manage educational institutions- article 30 provides that all minorities
whether based on religion or language shall have the right to establish and administer education
institution of their choice.

In Re ‘Kerala education Bill’ (A.I.R. 1958 S.C. 956) and ‘Jugul Kishore Kedia vs State of
Assam’ (A.I.R. 1988 Guwahati 8)- it was held that Article 30 actually ratifies the right provided
by Article 29(1) and gives it a material form, i.e. protects the language, script and culture of
minorities.

Provisions of Article 30 applies to institution established prior and subsequently, both types, to
the enforcement of Constitution. (In Re Kerala Education Bill, A.I.R. 1958 S.C. 956).it is
noteworthy that removal of fundamental right of property from Article 31 and 19(1) (h) has not
affected the rights under Article 30.

Ahemdabad St. Xaviers College Society Vs State of Gujarat [91974) 1 S.C. 717].later,
Gujarat university (Amendment) Act, 1972 provided that election of members of management
body of college and management of selection committee shall not be done by petitioner society
but by some other body. Supreme Court held it to be violative of Article 30(1) and held it
unconstitutional because-

(a) It effects the right to administer;

(b) Outside persons get entrance in administration of the institution,
(c) The power of vice chancellor may become arbitrary.

Aid by State- Article 30(2) provides that state cannot make discrimination in the matter of
granting of aid to any educational institution on the ground that it is managed by a religious
minority or linguistic minority.

‘Sidhrajbhai Vs State of Bombay- (A.I.R. 1963 S.C. 540)- it was called actual right of
Minorities.

Qs: Article 32 and 226

 28

Ans: The Supreme Court of India is a vigilant guard of fundamental rights of citizens. It is
supreme custodian of fundamental rights. Article 32 of Constitution provides for writs for the
enforcement of fundamental rights. Similar jurisdiction is available to High Courts under Article
226. Actually, the jurisdiction of High Courts is issue writ is more wide than that of Supreme
court. High court can issue writ for ‘other purpose’ alongwith fundamental rights, whereas
Supreme Court can only issue writ for the enforcement of fundamental rights.

Types of Writ- as per Article 32(2) and article 226 (1) of the Constitution, the supreme Court ca
issue five types of writs-

(1) Habeas corpus

(2) Mandamus
(3) Prohibition
(4) Certiorari, and
(5) Quo-Warrant.
(1) Habeas Corpus- it is the most important and prevailent writ. Its main object is to let free
illegally detained person. It literally means-“Produce the detained person before the court”.
‘P.S.Sadashiv Swami Vs State of Tamil Nadu’ (A.I.R. 1974 S.C. 2271)- the Supreme
Court gave this meaning to this writ, the court-
(i) Ask the causes of detention from the person by whom another person is detained asked;
(ii) Order calling the person detained to b e produced before the court;
(iii) Will order for releasing him if the detained person is detained illegally.

The petition of Habeas Corpus shall be presented by such person whose legal rights are violated.

(2) Mandamus- it literally means- “We order”. The writ is issued when there is failure in the
performance of legal duty by public authority, government, corporation or person. In such
situation, the court orders for the performance of legal duties. A.T.Marcos in his book
‘Judicial Control of Administration in India’ has said by clearing the meaning of writ that
writ is issued order to performance of legal duties or non-performance of illegal acts.

‘Mani Shobhraj Jain Vs State of Haryana’ [(1977)1 S.C.C. 486]- requirements of Mandamus
writ are described. According to it, following conditions for issue of Mandamus writ are required
to be fulfilled-

(i) Existence of legal right,

(ii) Such legal right should be enforceable by court,
(iii) The enforcement of such right imposes responsibility of performance of any duty over
any person, public authority, corporation or government.
(iv) Such duty is of public nature.

Mandamus writ cannot be issued in following conditions-

 29

(a) Compel state government to use its power.

(b) Against private person and institution,
(c) Performance of contractual duties,
(3) Prohibition- prohibition writ issued by the courts to its subordinates courts under following
situation-
(i) When subordinate court acts beyond its jurisdiction, or
(ii) Uses jurisdiction which is not vested,
(iii) Act contrary to the rules of natural justice.

‘Govind Menon Vs union of India (A.I.R. 1967 S.C. 1274)- it was held that prohibition writ
may be issued under following two situation-

(i) Where the work is done beyond its jurisdiction; or

(ii) Where the work is done without having any jurisdiction.
(4) Certiorari- certiorari writ is similar to prohibition wit. This writ may be issued in following
three situations-
(i) When court acts in absence of jurisdiction or beyond its jurisdiction; or
(ii) When court ignores the principles of natural justice; or
(iii) When any defect is apparent on the record.

‘Hari Vishnu Kaamath Vs Ahmed Ishaq’(A.I.R. 1955 S.C. 233).

Finally, this writ can be issued where principles of natural justice are not followed, i.e.-

(a) Where parties have not been provided reasonable opportunity of hearing; or
(b) Court has not been impartial in its decision.

There are two formulas of impartiality (without bias)-

(i) No one can be judge in his own case, and

(ii) Justice must not only be delivered, but should also appear being done.
(5) Quo-Warrants- it literally means- ‘What is your authority’ this writ is issued in such
matters where any person is holding public post illegally. Such person is asked that under
what authority he holds the office. Actually, this writ prevents person to hold an office
which he is not legally entitled to hold.

In matters of ‘Jamalpur Arya Samaj Vs Dr. D. Ram’ (A.I.R. 1954 Patna 297) and
‘University of Mysore Vs Govind Rao’ (A.I.R. 1965 S.C. 491)- requirements of this writ are
highlighted. This writ can be issued in following circumstances-

(i) When disputed post is public post; and

(ii) If it is hold by a person without legal authority.
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Thus, Article 32 and 266 of the constitution provide wide and important jurisdiction to Supreme
Court and High Court.

Qs: directive principles of state policy.

Ans: Articles 36-51 under Part-IV of Indian Constitution deal with Directive Principles of State
Policy (DPSP). They are borrowed from the Constitution of Ireland, which had copied it from
the Spanish Constitution. This article will solely discuss the Directive Principles of State Policy,
its importance in the Indian Constitution and the history of its conflict with Fundamental Rights.

What are the Directive Principles of State Policy?

The Sapru Committee in 1945 suggested two categories of individual rights. One being
justiciable and the other being non-justiciable rights. The justiciable rights, as we know, are the
Fundamental rights, whereas the non-justiciable ones are the Directive Principles of State Policy.
DPSP are ideals which are meant to be kept in mind by the state when it formulates policies and
enacts laws. There are various definitions to Directive Principles of State which are given below:

 They are an ‘instrument of instructions’ which are enumerated in the Government of

India Act, 1935.
 They seek to establish economic and social democracy in the country.
 DPSPs are ideals which are not legally enforceable by the courts for their violation.

Directive Principles of State Policy – Classification

Indian Constitution has not originally classified DPSPs but on the basis of their content and
direction, they are usually classified into three types-

 Socialistic Principles,
 Gandhian Principles and,
 Liberal-Intellectual Principles.
The details of the three types of DPSPs are given below:

DPSP – Socialistic Principles

Definition: They are the principles that aim at providing social and economic justice and set the path
towards the welfare state. Under various articles, they direct the state to:

Article Promote the welfare of the people by securing a social order through justice—social,
38 economic and political—and to minimise inequalities in income, status, facilities and
opportunities
 31

Article Secure citizens:

39
 Right to adequate means of livelihood for all citizens
 Equitable distribution of material resources of the community for the common good
 Prevention of concentration of wealth and means of production
 Equal pay for equal work for men and women
 Preservation of the health and strength of workers and children against forcible abuse
 Opportunities for the healthy development of children

Article Promote equal justice and free legal aid to the poor
39A

Article In cases of unemployment, old age, sickness and disablement, secure citizens:
41
 Right to work
 Right to education
 Right to public assistance,

Article Make provision for just and humane conditions of work and maternity relief
42

Article Secure a living wage, a decent standard of living and social and cultural opportunities for all
43 workers

Article Take steps to secure the participation of workers in the management of industries
43A

Article Raise the level of nutrition and the standard of living of people and to improve public health
47

DPSP – Gandhian Principles

Definition: These principles are based on Gandhian ideology used to represent the programme of
reconstruction enunciated by Gandhi during the national movement. Under various articles, they direct
the state to:

Article 40 Organise village panchayats and endow them with necessary powers and authority to
enable them to function as units of self-government
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Article 43 Promote cottage industries on an individual or co-operation basis in rural areas

Article Promote voluntary formation, autonomous functioning, democratic control and professional
43B management of co-operative societies

Article 46 Promote the educational and economic interests of SCs, STs, and other weaker sections of
the society and to protect them from social injustice and exploitation

Article 47 Prohibit the consumption of intoxicating drinks and drugs which are injurious to health

Article 48 Prohibit the slaughter of cows, calves and other milch and draught cattle and to improve
their breeds

DPSP – Liberal-Intellectual Principles

Definition: These principles reflect the ideology of liberalism. Under various articles, they direct the state
to:

Article Secure for all citizens a uniform civil code throughout the country
44

Article Provide early childhood care and education for all children until they complete the age of six
45 years

Article Organise agriculture and animal husbandry on modern and scientific lines
48

Article Protect monuments, places and objects of artistic or historic interest which are declared to be
49 of national importance

Article Separate the judiciary from the executive in the public services of the State
50
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Article  Promote international peace and security and maintain just and honourable relations
51 between nations
 Foster respect for international law and treaty obligations
 Encourage settlement of international disputes by arbitration

What are the new DPSPs added by the 42nd Amendment Act, 1976?
42nd Amendment Act, 1976 added four new Directive Principles in the list:

S.No Article New DPSPs

1 Article 39 To secure opportunities for the healthy development of children

2 Article 39A To promote equal justice and to provide free legal aid to the poor

3 Article 43A To take steps to secure the participation of workers in the management of
industries

4 Article 48A To protect and improve the environment and to safeguard forests and wildlife

To read more on the 42nd Amendment Act, 1976, aspirants may check the linked article.
Facts about Directive Principles of State Policy:

1. A new DPSP under Article 38 was added by the 44th Amendment Act of 1978, which
requires the State to minimise inequalities in income, status, facilities and opportunities.
2. The 86th Amendment Act of 2002 changed the subject-matter of Article 45 and made
elementary education a fundamental right under Article 21A. The amended directive
requires the State to provide early childhood care and education for all children until they
complete the age of 14 years.
3. A new DPSP under Article 43B was added by the 97th Amendment Act of 2011 relating
to co-operative societies. It requires the state to promote voluntary formation,
autonomous functioning, democratic control and professional management of co-
operative societies.
4. The Indian Constitution under Article 37 makes it clear that ‘DPSPs are fundamental in
the governance of the country and it shall be the duty of the state to apply these principles
in making laws.’

Criticism of Directive Principles of State Policy

As a point of debate, the following reasons are stated for the criticism of Directive Principles of
State Policy:
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1. It has no legal force

2. It is illogically arranged
3. It is conservative in nature
4. It may produce constitutional conflict between centre and state

What is the conflict between Fundamental Rights and DPSPs?

With the help of four court cases given below, candidates can understand the relationship
between Fundamental Rights and Directive Principles of State Policy:
Champakam Dorairajan Case (1951)
Supreme Court ruled that in any case of conflict between Fundamental Rights and DPSPs, the
provisions of the former would prevail. DPSPs were regarded to run as a subsidiary to
Fundamental Rights. SC also ruled that Parliament can amend Fundamental Rights through
constitutional amendment act to implement DPSPs.
Result: Parliament made the First Amendment Act (1951), the Fourth Amendment Act (1955)
and the Seventeenth Amendment Act (1964) to implement some of the Directives.
Golaknath Case (1967)
Supreme Court ruled that Parliament cannot amend Fundamental Rights to implement Directive
Principles of State Policy.
Result: Parliament enacted the 24th Amendment Act 1971 & 25th Amendment Act 1971
declaring that it has the power to abridge or take away any of the Fundamental Rights by
enacting Constitutional Amendment Acts. 25th Amendment Act inserted a new Article 31C
containing two provisions:


No law which seeks to implement the socialistic Directive Principles specified in
Article 39 (b)22 and (c)23 shall be void on the ground of contravention of the
Fundamental Rights conferred by Article 14 (equality before law and equal
protection of laws), Article 19 (protection of six rights in respect of speech,
assembly, movement, etc) or Article 31 (right to property).
 No law containing a declaration for giving effect to such policy shall be
questioned in any court on the ground that it does not give effect to such a policy.
Kesavananda Bharti Case (1973)
Supreme Court ruled out the second provision of Article 31C added by the 25th Amendment Act
during Golaknath Case of 1967. It termed the provision ‘unconstitutional.’ However, it held the
first provision of Article 31C constitutional and valid.
Result: Through the 42nd amendment act, Parliament extended the scope of the first provision
of Article 31C. It accorded the position of legal primacy and supremacy to the Directive
Principles over the Fundamental Rights conferred by Articles 14, 19 and 31.
Minerva Mills Case (1980)
 35

Supreme Court held the extension of Article 31C made by the 42nd amendment act
unconstitutional and invalid. It made DPSP subordinate to Fundamental Rights. Supreme Court
also held that ‘the Indian Constitution is founded on the bedrock of the balance between the
Fundamental Rights and the Directive Principles.’
Supreme Court’s rulings following the case were:

 Fundamental Rights and DPSPs constitute the core of the commitment to social
revolution.
 The harmony and balance between Fundamental Rights and Directive Principles of State
Policy is an essential feature of the basic structure of the Constitution.
 The goals set out by the Directive Principles have to be achieved without the abrogation
of the means provided by the Fundamental Rights.